E. C. Robinson Lumber Co. v. Lowrey

• Decision Date: 11 March 1955
• Docket Number: No. 7245,7245
• Citation: 276 S.W.2d 636
• Parties: E. C. ROBINSON LUMBER COMPANY, a corporation, Plaintiff. v. Gene LOWREY, Margaret Lowrey, Mercantile Mortgage Company, a corporation, and Roger A. Bailey, Trustee, Defendants.
• Court: Missouri Court of Appeals

Page 636

276 S.W.2d 636

E. C. ROBINSON LUMBER COMPANY, a corporation, Plaintiff. v. Gene LOWREY, Margaret Lowrey, Mercantile Mortgage Company, a corporation, and Roger A. Bailey, Trustee, Defendants.

No. 7245.

Springfield Court of Appeals, Missouri.

March 11, 1955.

Bailey & Craig, Sikeston, for defendant-appellant, Mercantile Mortgage co.

Edward F. Sharp, New Madrid, for plaintiff-respondent.

STONE, Judge.

In this action, E. C. Robinson Lumber Company (hereinafter called plaintiff) was awarded a personal judgment in the sum of $896.52 against Gene Lowrey and Margaret Lowrey, his wife, for materials used in construction of a house in New Madrid, Missouri, upon a lot owned by the Lowreys, as tenants by the entirety, and the real estate was subjected to a materialman's lien adjudged to be prior and superior to the lien of a deed of trust recorded on April 6, 1949, which secured payment of a note held by defendant, Mercantile Mortgage Company (hereinafter called Mercantile). The Lowreys defaulted in the circuit court, and this appeal is by Mercantile alone. The case having been tried by the court, sitting as a jury, it is our duty to review it 'upon both the law and the evidence as in suits of an equitable nature.' Section 510.310(4); Scott v. Kempland, Mo., 264 S.W.2d 349, 355(10); Howell v. Reynolds, Mo., 249 S.W.2d 381, 387(13). (All statutory references herein are to RSMo 1949, V.A.M.S.) 'The judgment shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.' Section 510.310(4); Cosentino v. Heffelfinger, 360 Mo. 535, 229 S.W.2d 546, 549(1); Truck Leasing Corp. v. Esquire Laundry & Dry Cleaning Co., Mo.App., 252 S.W.2d 108, 109(1).

It was stipulated that the materials delivered by plaintiff between February 18, 1948, and April 4, 1949, were used in construction of a house upon the Lowrey lot; 'that the agreed amount of plaintiff's account * * * is * * * $896.52 with legal interest from April 4, 1949'; and that the lien (Section 429.080) and this suit (Section 429.170) were timely filed. Mercantile insists that the judgment was erroneous, insofar as it subjected the real estate to a materialman's lien, (1) because it was not shown that 'the act that subjected the land to the lien was the joint act of tenants by (the) entirety' and (2) because (as Mercantile alleged in its answer), plaintiff having on March 5, 1949, 'accepted' a note 'as full and final payment of its (plaintiff's) account' against the Lowreys, and having 'stood idly by and permitted' the Lowreys 'to furnish verified proof that there were no outstanding liens against the real estate,' 'plaintiff will not at this late date be heard to say that the verified proof of absence of liens furnished by defendants * * * Lowrey was false * * * at the expense of Mercantile.' Stated in another way, the issues raised by Mercantile are (1) as to the authority of Gene Lowrey, the husband, to act for his wife, and (2) whether plaintiff was estopped by silence.

The case was tried twice in the circuit court. Following the first trial on December 29, 1950, Mercantile's motion for new trial was sustained on the ground, among others, that its motion for a directed verdict should have been granted. When the case was tried again, plaintiff introduced all of the testimony at the first trial and also offered additional evidence. Neither of the Lowreys testified, and defendants presented no evidence at either trial. Mercantile emphasizes that, when Hubert Harris, manager of plaintiff's 'branch yard' in New Madrid, was asked at the first trial 'with whom you made the contract for the purchase of this material and for the delivery,' he answered, 'I talked to Mr. Gene Lowrey'; and that, in response to the next question, 'Is he the man that purchased the material from you?', Harris said, 'Yes, sir.' Without detailing Harris' testimony, we may say that we are definitely of the opinion that the evidence offered by plaintiff, before it rested at the first trial, was wholly insufficient to make a prima facie case of authority on the part of Gene, the husband, to act for his wife in contracting orally with plaintiff, and that Mercantile's motion for a directed verdict at the close of plaintiff's case should have been sustained. However, after such motion had been offered and refused, plaintiff's counsel recalled Harris at the first trial and then elicited testimony from him to the effect that Margaret, the wife, 'knew the work was being done'; that she had given 'at least a third' of the orders for material 'by telephone calls and in person'; and, that she and her husband had been to plaintiff's yard 'a number of times together and (had) ordered material together.' (All emphasis herein is ours.)

When the case was retried on October 27, 1952, witness Harris again testified. Being invited on that occasion to 'tell the court in your own language just how this material was sold and delivered to the Lowreys and * * * what part each of them had in the purchase of the material,' Harris then said 'they were up there at the lumber yard and we talked over the material and agreed on the price and we delivered the material as they called for it * * *. Two-thirds of the time she * * * called the orders in and they were delivered and she * * * was in a number of times and he and her picked out the cabinet and she picked out the paint and a number of tickets she signed on delivery of the material.' And, when asked 'whether or not both of them (the Lowreys) participated in the purchase of this material,' Harris replied 'they did.' He also testified without objection that, in talking to the Lowreys after the first trial, 'she agreed * * * that they had purchased material, but the only thing she objected to was they bought a little more material than they had planned to buy, and agreed to me that they owed us for the material.' According to Harris, he had seen Mrs. Lowrey 'around the house' during the course of construction 'practically every day.'

It was stipulated at the second trial that 'Dean Fitzgerald was the carpenter employed to build the (Lowrey) house and that if * * * present (he) would testify that Mrs. Margaret Lowrey was there practically every day during the time the house was being constructed, * * * that she gave him instructions as to building the house as the work progressed, * * * that when the material for the house was delivered by the Robinson Lumber Company she signed a great number of the receipts * * * showing delivery of the material, (and) that he knows she went down to the lumber shed for the purpose of picking out some of the material.' It was agreed also that both of the Lowreys 'signed and tendered' to plaintiff on March 5, 1949, a deed of trust securing payment of a note for $1,887.38 which apparently was the then unpaid balance of plaintiff's account.

Where, as here, real estate is owned by husband and wife as tenants by the entirety, title may be affected only by the joint act of both spouses, and neither may, by his or her individual act, subject the property to a mechanic's or material-man's lien ¹; and, it has been said that, before a lien is imposed on an estate by the entirety, the evidence should be strong and persuasive that the act subjecting the property to a lien was the joint act of both tenants. ² That the wife knows of and passively acquiesces in construction of a house, [R. D. Kurtz, Inc. v. Field, 223 Mo.App. 270, 14 S.W.2d 9, 11(5); Berkshire v. Holcker, 202 Mo.App. 433, 216 S.W. 556, 558-559(6)], or that she evidences 'a wifely interest' therein [Marshall v. Hall, Mo.App., 200 S.W. 770, 775(11)], or that she 'compliments' the work and makes no objection thereto [Wilson v. Fower, 236 Mo.App. 532, 155 S.W.2d 502, 504(6)], or even that she makes suggestions concerning construction [Wilson v. Fower, supra, 155 S.W.2d loc. cit. 504; Berkshire v. Holcker, supra, 216 S.W. loc. cit. 559(8)], does not establish the husband's agency for his wife in purchasing material used in construction.

However, irrespective of whether (as Mercantile asserts) the note and deed of trust admittedly 'tendered' to plaintiff on March 5, 1949, were 'accepted * * * as full and final payment' of plaintiff's account (of which we will treat later), the stipulated fact that Mrs. Lowrey executed such deed of trust tends to indicate her knowledge of and participation in the building project and is evidence of such character as has been considered significant and important in other cases. ³ In our opinion the record in its entirety permits and justifies the conclusion that Mrs. Lowrey did far more than demonstrate 'a wifely interest' or passive acquiescence, indulge in expressions of approbation or approval, or make occasional suggestions about the work; and, as we view the evidence, Mrs. Lowrey's activity and participation in the construction project was of such nature and extent as to bring the case at bar within the doctrine thus stated in Magidson v. Stern, 235 Mo.App. 1039, 148 S.W.2d 144, 151(5): '(I)f the facts * * * are such as to show that the wife dealt actively with the person furnishing the labor and material, and, as frequently happens, assisted in raising funds for the doing or completion of the work, then her conduct, even if not of a character to have bound her personally to pay for the labor and material going into the work, will at least be held sufficient to have transmitted to the person furnishing the labor and material the right to have a lien upon the premises.'

The testimony of witness Harris was, in certain respects, obviously inconsistent, highly unsatisfactory and completely unconvincing. Cf. John T. Brown, Inc., v. Weber Implement & Automobile Co., Mo., 260 S.W.2d 751, 756-757. But, even if we might assume that, since Harris' testimony at the first trial was offered at the second trial by plaintiff's counsel, all of his testimony...